CYIL 2012

CROSSING THE RUBICON: ON THE CORRELATION OF THE PRINCIPLE OF TRANSPARENCY… Undoubtedly, this provision limits the right to access information which was obtained in the course of the arbitral proceedings. In general, it is true that this information enjoys confidentiality, however per se we cannot exclude the public interest in certain matters such as public security, health and environment protection. This provision was first and foremost incorporated to protect the state from the situation where subjects will gain access to information which could be used against it during arbitral proceedings. 71 The rationale behind this article is the idea that the transparency laws could be (mis)used to the detriment of the states by offering investors the possibility to gain (without being bound by the arbitral document production rules) the advantage of an additional document production possibility. Therefore states should not be obliged to grant access to evidence which was requested by the investors participating in an investment (or any other commercial) arbitration in order to be subsequently used against the state. Certainly, time will show whether there is an interest of the Slovak public in information originating from arbitral proceedings and whether this provision will prove to be a valuable tool in protecting the state’s interests, especially when the public is conducting a scrutiny in order to “hold governments accountable for their actions with respect to the arbitration and for the result”. 72 In this case, however, the principle of transparency encounters important limitations since the necessity of ensuring the protection of a state’s interest, its procedural rights and equal treatment in arbitral proceedings have to prevail. Keeping in mind the growing tendency to incorporate transparency in every governmental and state-connected activity, it is given that transparency in investment arbitration will also be one of the influenced areas since a thriving budget environment and the consolidation of public spending will bring questions as to how and in which way states are performing in arbitral proceedings- especially in the times of a financial crisis, when the public is (and will be) bearing the costs or losses originating from the course of the investment litigation. 5. Conclusion Crossing the Rubicon means to reach a point of no return, a point where all questions will be answered and an effective solution is awaited in the near future. As it was indicated throughout this paper, transparency and confidentiality have to be 71 In contrast the Czech Act of Free Access to Information (Act No. 106/1999 dated 11. May 1999) does not assess the access to information originating in arbitral proceedings. The limitations are constructed around the idea of protecting e.g. sensitive information concerning security, international obligations, pending criminal proceedings or information which entails copyright of third parties. Therefore these two Acts, when compared, could cause in the area of their application a particular discrepancy within the concept of transparency in international investment. However the access to particular submissions would be restricted, per se by the existence of confidentiality, if not subject to an exception as a result of an overriding public interest. 72 C. G. Buys, “The Tensions between Confidentiality and transparency in International Arbitration”, T he American review of International Arbitration , vol. 14 (2004), pp. 134.

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